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An interview with Dave White, a water expert at Arizona State University, about what a breakthrough along the Colorado River really means
Arizona, California, and Nevada announced a deal on Monday to reduce the amount of Colorado River water they use, ahead of a bigger overhaul planned for 2026. The agreement is crucial, likely keeping the river from reaching dangerously low levels that would have put water supplies for major cities and agricultural regions at risk. But Colorado River water policy is often knotty and confusing, and it can be difficult to wrap one’s head around just what kind of impact deals like this can have.
To that end, I called up Dave White, the director of the Global Institute of Sustainability and Innovation at Arizona State University and chair of the City of Phoenix’s Water/Wastewater Rate Advisory Committee. He explained how things work now, what the deal means, and how he’d like to see things change in the future — particularly in 2026, when the current set of water allocation rules expire and are replaced. Our conversation has been edited for length and clarity.
There are more than 100 years of law policy agreements, which we collectively call the law of the river. But the most relevant is an agreement called the 2007 Interim Operating Guidelines for the Coordinated Operations of Lake Powell and Lake Mead. That’s the long name, but we typically call it the 2007 agreement.
That agreement created a set of rules that, as the name indicates, helped to guide the operations of Lake Powell and Lake Mead. And along with subsequent agreements, particularly the drought contingency plans in 2019, it has guided the management of the reservoir system on the Colorado River and set forth the allocations managing the flow to the lower basin states.
Right now we’re in the time period between when the interim guidelines were established in 2007, updated with drought contingency plans in 2019, and when we’ll hit a deadline for a new set of operating guidelines in 2026. And so all of this is trying to manage the risk from the reduced water supply on the Colorado River and to help reestablish a balance in the supply-demand equation of water in an era of megadrought, climate change, and high agricultural demand and increasing municipal demand.
The first thing that’s important for folks to realize is that this is a proposal. What was announced was essentially an agreement among the lower basin states — California, Nevada and Arizona — to propose a plan to reduce demand in those states. It will need to go through additional steps to identify more specifics, and then this proposal ultimately will need to be adopted by the seven affected states and then endorsed by the Bureau of Reclamation.
What the proposal does is lay out a framework to reduce water demand in the lower basin by about 3 million acre feet. And for context, one acre foot is about 325,000 gallons of water, or the amount of water used by two to four homes in the western United States per year. That reduction would be taken across multiple sectors: agriculture, tribal communities, and some municipal or urban users, most notably the Metropolitan Water District of California, which is the Los Angeles area.
The idea is to reduce demand through voluntary conservation. And then part of the package is compensation for some of that voluntary conservation in the form of funding from the federal government through the Inflation Reduction Act to the tune of about $1.2 billion. That is an absolutely critical part of the of the story: the Inflation Reduction Act has really enabled this breakthrough, because of the federal funding for those voluntary conservation measures.
Another critical part of the story was that recently the Bureau of Reclamation released what’s called a draft environmental impact statement, and it presented a couple of alternatives to the states for consideration. Those proposals gave us kind of a federal government’s perspective on the framework moving forward. It was essentially a classic negotiating tactic, where the Bureau of Reclamation said, “look, you states have yet to reach a consensus agreement, so we’re going to lay out a plan,” and, as is often the case, everybody was unhappy with parts of that plan.
That helped to stimulate additional negotiations and bring California, in particular, more to the table. So it’s a very important moment in time because it represents a turning point in multi-year negotiations between the states. Importantly, it lays out a path forward for a consensus agreement that is driven by the states as opposed to being imposed upon them by the federal government. So, we’re talking about a breakthrough in negotiations that led to a three-state proposal.
Well, that’s what we’re waiting to see. We don’t have all of those details yet.
Legally, the Bureau of Reclamation needs to go through this process, weigh the different alternatives, evaluate it, identify what they would call a preferred alternative, and then ultimately make a determination. But the Bureau of Reclamation has certainly indicated there’s initial support for this proposal and that the funding would be made available.
We don’t know who specifically would receive how much of that funding but we do know that it will be agriculturalists (essentially farmers and ranchers), some municipalities such as the Metropolitan Water District of California, and some Native American communities.
We are still engaged in what I would call incremental adaptation. This is adapting to the rapidly changing conditions that are presented by this 22-year-long drought, the so-called megadrought in the region. We are also adapting to the impacts of climate change. If you go back, you know, the 2007 agreement was an incremental update to deal with a very significant risk of shortage on the Colorado River system in 2000 to 2005. We had the drought contingency planning process in 2019 that was another incremental adaptation at that time that was meant to get us to 2026, when the current guidelines expire. Environmental conditions continue to rapidly change, while the demand side continues to stay high. And while we’ve made a number of efficiency gains and voluntary reductions, the river is simply over-allocated for the flow that we have seen, especially since the turn of the millennium.
So we’ve been engaging in a series of incremental adaptations. Now, there’s nothing wrong with that. That’s a very smart strategy as you move along, right? You’re incrementally adapting your policy to reflect the changing environmental and social conditions. This is another important incremental adaptation that will hopefully allow us to keep working towards the 2026 guidelines.
What I and many others argue is that we need a more transformative adaptation, we need a more significant restructuring. Now, it’s difficult to do that right now in the midst of a very short-term risk. But eventually, between now and 2026, we need to address some of the structural imbalance, or deficit, in the river. We have over-allocated the river in this era of increasing drought and climate change.
We’ve got to restructure the demand over the course of the next several years, and that’s going to require more transformational kinds of changes. But I also want to point out that’s not limited to reducing demand, right? You can do that through dramatic increases in efficiency. We can produce the same units of product, whether that be food or microchips or homes or businesses, with significantly less water.
The most effective strategy is efficiency. It’s the cheapest. It does not require significantly new infrastructure or new water augmentation. And there are lots of good stories out there, in creating more efficiencies and creating more flexible policies and more adaptability within the way that we manage water. We’ve got to sort of wring every cool new approach we can out of the system.
One that I think is really important is that the city of Phoenix and several of its regional partners in central Arizona are in the planning stages of moving towards an advanced water-purification process. What that means is it would allow the cities to pool their wastewater resources, their effluent, and then be able to treat that water through advanced water purification so we can reuse that water for municipal use. We call that direct, potable reuse of the water.
Central Arizona is incredibly efficient, we reuse about 90% of all the wastewater that we produce in the central Arizona region for power production, for urban irrigation, for agriculture, etc. But we can actually reuse that water to support households and businesses. We can then use that water again. Some of it is consumed by people, but basically cycling the water through the city as many times as possible reduces the need for new raw water.
So the current proposal that’s in the process of being developed by the City of Phoenix Water Services Department is for advanced water purification that, according to the current estimates, would produce about 60,000 gallons of water a day for City of Phoenix residents from wastewater. And so, that’s one way we can be much more efficient in recycling and reusing our water.
I do think it gets to the need for greater public understanding and then, you know, individual and collective action. In single family residential households, for example, 50% or more, on average, of the water use is outside the home for things like residential landscaping and swimming pools. In the Phoenix area, we’ve seen a really significant trend in reducing water demand inside single family homes, thanks to technologies like low water-use toilets and more efficient washing machines and dishwashers and so on. The next frontier is getting more progressive with the way we manage residential landscaping water. And that's something that every individual household can do.
The Southern Nevada Water Authority, the Las Vegas Regional Authority, has been really at the forefront of these kinds of strategies with turf buyback programs, incentivizing homeowners, and creating all sorts of both incentives and policies to reduce that outdoor residential demand. And that’s something where individual households can be empowered.
No, I really don’t. It’s about a sort of risk management in the short term, and then crafting new policy approaches and new management strategies over the long term. So I don’t think these get in the way of each other. The 2019 agreement essentially bought us some time, and this round of proposals and anticipated agreements will continue to buy us some time.
Do I think we need more adaptation, and more significant changes? Absolutely. But I would never criticize these incremental plans, because they’re absolutely necessary to manage short-term risk.
Without these actions, there was a plausible scenario where levels in the reservoirs could drop below the minimum power pool, meaning we wouldn’t be able to create power out of the Hoover Dam. In [the Bureau of Reclamation’s] 24-month studies, we began to see scenarios in which the lake levels dropped below the intakes, meaning we wouldn’t be able to deliver Colorado River water whatsoever to the states.
When you start to see these highly undesirable scenarios where you lose the ability to produce power, you potentially even lose the ability to deliver any water at all from the Colorado system to Arizona, California, or Nevada, you know you’ve got to act and engage in short-term risk management.
The risk that we’ve always seen is that you get some relief from the kind of very strong winter precipitation in the Rocky Mountains and in California that we had this year. But as a colleague says, we cannot let one good winter take the pressure off. I never want to root against good news, and the winter precipitation and the new proposal and potential agreements are good news. But you got to keep the pressure on and keep the emphasis on the long-term strategies.
[Laughs] Yes.
Well, I think you can look at it both ways. Yes, there was the intention that the 2019 plans would get us to 2026. Turns out the 2019 plans got us through 2022. That’s just the reality we’re in. Do I wish the 2019 plans would have gotten us to 2026? Yes. But without the 2019 plans, we would have been at risk of minimum power pool levels even earlier.
I was hopeful the 2007 plans would get us to 2026. But the reality is that the climate is changing, the drought has just been incredibly persistent. I mean, we now know from looking at reconstructions of the past climate that this 22-year period is the driest period in our region in the last 800 years for certain, and very likely in the last 1,200 years. That’s an exceptional period of drought. And so, by some measures, you know, it’s pretty remarkable what the water management community has done to manage the risk without significant disruption to the region. So in some ways, it’s a success story.
The single most important thing everyone recognizes is that we really need to chart a new path forward for agriculture. Particularly for agriculture in the lower basin, and even more specifically for non-food forage crops in the lower basin.
We still use two-thirds or more of our water in the lower basin for agriculture, and most of that is used for forage crops, like alfalfa, which feed livestock. So we very much need to restructure the agricultural sector in the lower basin and think about prioritization of certain types of agriculture in certain locations. And importantly, we need to work with agricultural communities, with landowners and businesses, to help them transition to a future that recognizes there’s less water available. And, you know, this is the challenge that we face: How do we make an intentional, thoughtful, supportive transition to a new, more efficient, and more appropriate type of agriculture in the West?
This region is in an amazing region to grow alfalfa if you have water. And so, there’s lots of rational choices that were made along the way. But in an era of significantly reduced water availability, it is simply not sustainable for us to continue to use that much of our available water for agriculture, and in particular for forage crops mostly to support cattle. And so this has to change.
I fully recognize, though, that these are private property rights, and there needs to be a process for this. We can’t just simply have a situation like what we saw in the Midwest where we just move all of our manufacturing overseas and abandon entire swaths of the country. We have to think about how we can help, whether it’s through compensation, community planning, capacity building, job transitions, etc. But that’s the biggest part of the solution. We need to be very thoughtful about that.
I think one of the key things we really need to get into the planning process [for 2026] is greater adaptability and greater flexibility so we’re able to respond to changing conditions. Under the current guidelines there is a priority rights process where we would have [hypothetically] seen the reduction of essentially all — 100% — of Arizona’s allocation of the Colorado River, before any of California’s rights were reduced. But it seems implausible to eliminate the Colorado River water supply to Phoenix, which is the fifth largest city in the country. These are the third rails of water politics. We have to rethink the way that these water allocation decisions are made, and we’ve got to be much more flexible, much more adaptable, and really think about how we can respond to climate and water conditions.
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In defense of “everything bagel” policymaking.
Writers have likely spilled more ink on the word “abundance” in the past couple months than at any other point in the word’s history.
Beneath the hubbub, fed by Ezra Klein and Derek Thompson’s bestselling new book, lies a pressing question: What would it take to build things faster? Few climate advocates would deny the salience of the question, given the incontrovertible need to fix the sluggish pace of many clean energy projects.
A critical question demands an actionable answer. To date, many takes on various sides of the debate have focused more on high-level narrative than precise policy prescriptions. If we zoom in to look at the actual sources of delay in clean energy projects, what sorts of solutions would we come up with? What would a data-backed agenda for clean energy abundance look like?
The most glaring threat to clean energy deployment is, of course, the Republican Party’s plan to gut the Inflation Reduction Act. But “abundance” proponents posit that Democrats have imposed their own hurdles, in the form of well-intentioned policies that get in the way of government-backed building projects. According to some broad-brush recommendations, Democrats should adopt an abundance agenda focused on rolling back such policies.
But the reality for clean energy is more nuanced. At least as often, expediting clean energy projects will require more, not less, government intervention. So too will the task of ensuring those projects benefit workers and communities.
To craft a grounded agenda for clean energy abundance, we can start by taking stock of successes and gaps in implementing the IRA. The law’s core strategy was to unite climate, jobs, and justice goals. The IRA aims to use incentives to channel a wave of clean energy investments towards good union jobs and communities that have endured decades of divestment.
Klein and Thompson are wary that such “everything bagel” strategies try to do too much. Other “abundance” advocates explicitly support sidelining the IRA’s labor objectives to expedite clean energy buildout.
But here’s the thing about everything bagels: They taste good.
They taste good because they combine ingredients that go well together. The question — whether for bagels or policies — is, are we using congruent ingredients?
The data suggests that clean energy growth, union jobs, and equitable investments — like garlic, onion, and sesame seeds — can indeed pair well together. While we have a long way to go, early indicators show significant post-IRA progress on all three fronts: a nearly 100-gigawatt boom in clean energy installations, an historic high in clean energy union density, and outsized clean investments flowing to fossil fuel communities. If we can design policy to yield such a win-win-win, why would we choose otherwise?
Klein and Thompson are of course right that to realize the potential of the IRA, we must reduce the long lag time in building clean energy projects. That lag time does not stem from incentives for clean energy companies to provide quality jobs, negotiate Community Benefits Agreements, or invest in low-income communities. Such incentives did not deter clean energy companies from applying for IRA funding in droves. Programs that included all such incentives were typically oversubscribed, with companies applying for up to 10 times the amount of available funding.
If labor and equity incentives are not holding up clean energy deployment, what is? And what are the remedies?
Some of the biggest delays point not to an excess of policymaking — the concern of many “abundance” proponents — but an absence. Such gaps call for more market-shaping policies to expedite the clean energy transition.
Take, for example, the years-long queues for clean energy projects to connect to the electrical grid, which developers rank as one of the largest sources of delay. That wait stems from a piecemeal approach to transmission buildout — the result not of overregulation by progressive lawmakers, but rather the opposite: a hands-off mode of governance that has created vast inefficiencies. For years, grid operators have built transmission lines not according to a strategic plan, but in response to the requests of individual projects to connect to the grid. This reactive, haphazard approach requires a laborious battery of studies to determine the incremental transmission upgrades (and the associated costs) needed to connect each project. As a result, project developers face high cost uncertainty and a nearly five-year median wait time to finish the process, contributing to the withdrawal of about three of every four proposed projects.
The solution, according to clean energy developers, buyers, and analysts alike, is to fill the regulatory void that has enabled such a fragmentary system. Transmission experts have called for rules that require grid operators to proactively plan new transmission lines in anticipation of new clean energy generation and then charge a preestablished fee for projects to connect, yielding more strategic grid expansion, greater cost certainty for developers, fewer studies, and reduced wait times to connect to the grid. Last year, the Federal Energy Regulatory Commission took a step in this direction by requiring grid operators to adopt regional transmission planning. Many energy analysts applauded the move and highlighted the need for additional policies to expedite transmission buildout.
Another source of delay that underscores policy gaps is the 137-week lag time to obtain a large power transformer, due to supply chain shortages. The United States imports four of every five large power transformers used on our electric grid. Amid the post-pandemic snarling of global supply chains, such high import dependency has created another bottleneck for building out the new transmission lines that clean energy projects demand. To stimulate domestic transformer production, the National Infrastructure Advisory Council — including representatives from major utilities — has proposed that the federal government establish new transformer manufacturing investments and create a public stockpiling system that stabilizes demand. That is, a clean energy abundance agenda also requires new industrial policies.
While such clean energy delays call for additional policymaking, “abundance” advocates are correct that other delays call for ending problematic policies. Rising local restrictions on clean energy development, for example, pose a major hurdle. However, the map of those restrictions, as tracked in an authoritative Columbia University report, does not support the notion that they stem primarily from Democrats’ penchant for overregulation. Of the 11 states with more than 10 such restrictions, six are red, three are purple, and two are blue — New York and Texas, Virginia and Kansas, Maine and Indiana, etc. To take on such restrictions, we shouldn’t let concern with progressive wish lists eclipse a focused challenge to old-fashioned, transpartisan NIMBYism.
“Abundance” proponents also focus their ire on permitting processes like those required by the National Environmental Policy Act, which the Supreme Court curtailed last week. Permitting needs mending, but with a chisel, not a Musk-esque chainsaw. The Biden administration produced a chisel last year: a NEPA reform to expedite clean energy projectsand support environmental justice. In February, the Trump administration tossed out that reform and nearly five decades of NEPA rules without offering a replacement — a chainsaw maneuver that has created more, not less, uncertainty for project developers. When the wreckage of this administration ends, we’ll need to fill the void with targeted permitting policies that streamline clean energy while protecting communities.
Finally, a clean energy abundance agenda should also welcome pro-worker, pro-equity incentives like those in the IRA “everything bagel.” Despite claims to the contrary, such policies can help to overcome additional sources of delay and facilitatebuildout.
For example, Community Benefits Agreements, which IRA programs encouraged, offer a distinct, pro-building advantage: a way to avoid the community opposition that has become a top-tier reason for delays and cancellations of wind and solar projects. CBAs give community and labor groups a tool to secure locally-defined economic, health, and environmental benefits from clean energy projects. For clean energy firms, they offer an opportunity to obtain explicit project support from community organizations. Three out of four wind and solar developers agree that increased community engagement reduces project cancellations, and more than 80% see it as at least somewhat “feasible” to offer benefits via CBAs. Indeed, developers and communities are increasingly using CBAs, from a wind farm off the coast of Rhode Island to a solar park in California’s central valley, to deliver tangible benefits and completed projects — the ingredients of abundance.
A similar win-win can come from incentives for clean energy companies to pay construction workers decent wages, which the IRA included. Most peer-reviewed studies find that the impact of such standards on infrastructure construction costs is approximately zero. By contrast, wage standards can help to address a key constraint on clean energy buildout: companies’ struggle to recruit a skilled and stable workforce in a tight labor market. More than 80% of solar firms, for example, report difficulties in finding qualified workers. Wage standards offer a proven solution, helping companies attract and retain the workforce needed for on-time project completion.
In addition to labor standards and support for CBAs, a clean energy abundance agenda also should expand on the IRA’s incentives to invest in low-income communities. Such policies spur clean energy deployment in neighborhoods the market would otherwise deem unprofitable. Indeed, since enactment of the IRA, 75% of announced clean energy investments have been in low-income counties. That buildout is a deliberate outcome of the “everything bagel” approach. If we want clean energy abundance for all, not just the wealthy, we need to wield — not withdraw — such incentives.
Crafting an agenda for clean energy abundance requires precision, not abstraction. We need to add industrial policies that offer a foundation for clean energy growth. We need to end parochial policies that deter buildout on behalf of private interests. And we need to build on labor and equity policies that enable workers and communities to reap material rewards from clean energy expansion. Differentiating between those needs will be essential for Democrats to build a clean energy plan that actually delivers abundance.
On DOE grants, OPEC, and construction costs
Current conditions: Air quality alerts remain in effect for the entire state of Minnesota through Monday evening due to wildfire smoke from Manitoba • An enormous dust storm is blowing off the Sahara Desert and could reach the Gulf Coast this week • Northern lights were visible on camera as far south as Florida on Sunday. You’ll have another chance to see them tonight.
In case you missed it, the Department of Energy canceled nearly $4 billion in funds for industrial and manufacturing projects on Friday. Many of the projects had been planned in rural or conservative areas, including $500 million awarded to ExxonMobil and Calpine’s carbon capture project in Baytown, Texas. A DOE spokesperson said in the announcement that the 24 canceled grants were for projects that “were not economically viable and would not generate a positive return on investment of taxpayer dollars.”
None of the awardees responded to my colleague Emily Pontecorvo’s inquiries about whether they plan to pursue legal challenges, but she did note in her analysis one critic of the Trump administration’s move who described it as “dismantling” the clean energy economy and “giving away the future of manufacturing.” Emily also observed a notable absence from the DOE’s list of canceled grants: steelmaking company Cleveland Cliffs, which she reported last month was in the process of renegotiating its award under the Industrial Demonstration Program.
This weekend, the eight members of OPEC+ announced that they would continue to increase oil production in July, the third straight month in a row. The group’s target is an additional 411,000 barrels a day, or more than three times what it had previously planned, AFP reports, though analysts expect the actual production amount will be less.
The increases have followed a period of low production by Saudi Arabia, though The New York Times notes that the Saudis and other OPEC+ members like the United Arab Emirates “had chafed because some members, including Iraq and Kazakhstan, had exceeded their ceilings. The Saudis are now sending a message that they will not restrain output if others don’t.” Though the prices for Brent crude have fallen this year by around 16%, the Times adds that the Saudis, “who have low costs, can still make money at those levels” even as shale drillers in the U.S. have slowed. OPEC produces approximately 40% of the global crude oil supply, with oil and gas operations accounting for around 15% of total energy-related emissions worldwide.
The average energy infrastructure project costs 40% more than expected for construction and takes nearly two years longer to complete than initially planned, according to a new study of 662 such projects in 83 countries by the Boston University Institute for Global Sustainability, published in the journal Energy Research & Social Science. Nuclear power plants were the worst offenders, with construction costing 102.5% more on average, or $1.56 billion more than expected. Hydrogen, carbon capture and storage, and thermal power plants that rely on natural gas were also among higher-risk infrastructure projects, the study found. “I’m particularly struck by our findings on the diseconomies of scale, with projects exceeding 1,561 megawatts in capacity demonstrating significantly higher risk of cost escalation,” Hanee Ryu, one of the researchers, said. “This suggests that we may need to reconsider our approach to large-scale energy infrastructure planning, especially as we commit trillions to global decarbonization efforts.”
Solar energy and transmission projects, on the other hand, had the lowest investment risks for construction and time costs, and are often completed ahead of schedule and for less than expected, the research found. Wind, similarly, “performed favorably in the financial risk assessment.” You can read the full report here.
Airline industry decarbonization goals are “in peril,” according to comments made by the International Air Transport Association’s senior vice president for sustainability, Marie Owens Thomsen, at a trade conference in India on Sunday. While several major aviation groups have set 2050 as the goal for achieving net-zero carbon emissions for air travel, Owens Thomsen specifically cited the Trump administration’s policies as “obviously a setback,” Barron’s reports.
Programs to support the development of sustainable aviation fuels are also in jeopardy. The European Union requires carriers to include 2% lower-emission biofuel in their fuel mix starting this year, but Owens Thomsen said the cheap cost of oil is still diminishing the “sense of urgency that people have.” She expected a $4.7 trillion investment in SAF would be needed to meet the 2050 emission goals. “It is entirely achievable,” she went on, calling the money involved “very comparable to the money that was involved in creating the previous new energy markets, notably, obviously, wind and solar.”
Tesla is no longer the best-selling electric vehicle in Canada. Late last week, GM announced it has officially taken the crown as the “#1 EV seller” in the country, following a surge in sales of 252% in the first three months of the year, led by the Chevy Equinox EV.
Though Tesla’s dethroning is also indicative of the brand’s diminished reputation abroad — Electrek notes Tesla registered just 542 cars in Quebec, the country’s top EV market, in the first quarter of 2025 — the numbers also reflect GM’s successes, with even sales of its GMC Hummer EV Pickup up 232%. Combined Q1 EV sales in Canada were nevertheless still down significantly, to 5,750 from 15,000 EV sales in Q4, Electrek adds, a dip attributable to Quebec’s pause on federal EV incentives between February and April.
NOAA
Happy second day of meteorological summer! It could be a toasty one: The National Oceanic and Atmospheric Administration’s Climate Prediction Center expects hotter-than-average temperatures across much of the Southwest and Northeast this year.
Justice Brett Kavanaugh’s decision in the case of Seven County Infrastructure Coalition v. Eagle County, Colorado enlists the nation’s highest court in the campaign to reform federal environmental enforcement.
A new chapter opened for one of the country’s most important environmental laws this week.
On Thursday, the Supreme Court transformed the National Environmental Policy Act, or NEPA, an environmental permitting law that affects virtually every decision that the federal government makes. The quasi-unanimous ruling limits the law’s scope and cuts off future avenues for challenging energy and infrastructure projects under the law.
It could reshape the scale of legal challenges that projects could face in the future, giving the Trump administration — and any successive administration — greater leeway to approve energy projects.
Under NEPA, federal agencies must study the environmental impacts of their decisions before they make them. The strictest studies can run into the hundreds of pages, and they can take years to complete.
But in what was essentially an 8-0 decision, the Court ruled that federal agencies almost never need to analyze the second-order environmental effects of their decisions. In other words, an agency need only study the environmental impact of a project itself — be it a pipeline, a solar farm, or, in the case at issue, a railroad — and not its metaphorically downstream consequences. That remains the case even if a given project might indirectly make it much easier to do something with a big environmental footprint, such as drilling for oil or natural gas.
That is the clearest effect of the ruling. But Justice Brett Kavanaugh, writing for the court’s conservative majority, went much further than that summary alone suggests. In a broad and forceful ruling, he told lower courts that they should stop nitpicking the environmental studies that federal agencies must publish under NEPA to justify their own decision-making. Courts should, instead, defer to federal agencies as much as is reasonable when reviewing a NEPA study. “The goal of the law,” he writes, “is to inform agency decision-making, not to paralyze it.” (Justice Neil Gorsuch recused himself from the case because of his connection to an oil magnate who could have benefited from the ruling.)
That suggests a significant change is coming to how the court system interprets NEPA, a law that is little known to the general public but that plays a defining role in how federal agencies make decisions or approve infrastructure projects. NEPA creates a procedural requirement that federal agencies study the environmental impact of any “major decision,” but that category is so broad that it affects virtually everything the federal government does — spend money, write a new regulation, or approve a new project on federal land. The law and the yearslong lawsuits that it spawns have been blamed for delays in building solar farms and transmission lines, but also oil refineries and gas pipelines.
Kavanaugh’s ruling is “pretty striking for just how strident it is, and how assertively it tries to shut the door on further NEPA litigation,” Nicholas Bagley, a University of Michigan law professor who studies the permitting system, told me. Kavanaugh’s message to lower courts is, in essence, “We keep telling you to knock it off. You keep not listening. So knock it the fuck off,” Bagley said.
At the very least, the ruling suggests that a new phase in the effort to reform the country’s permitting laws has arrived. Now that movement has, in essence, been blessed by the Supreme Court.
The case in question — Seven County Infrastructure Coalition v. Eagle County, Colorado — concerns an 88-mile railroad proposed to connect the Uinta Basin in eastern Utah to the national freight rail network. In 2021, the Surface Transportation Board, a federal agency that regulates railroads, approved the project after completing a roughly 3,600-page study of the railroad’s potential environmental impact.
Almost immediately, environmental groups argued that the board’s study did not go far enough. The ground beneath the Uinta Basin is rich in a waxy and particularly carbon-intensive crude oil; right now, very little of that oil is extracted because the only way to get it out is by truck, along windy mountain roads. The railroad, if built, would allow for much larger volumes of crude to be transported out of the basin and sent to Gulf Coast refineries. Building the railroad, in other words, would indirectly increase local oil extraction, and thereby raise global greenhouse gas emissions.
The board argued that its NEPA study did not need to consider these downstream effects because the board itself does not regulate oil extraction — that is, it regulates the building of railroads, not what gets moved on them.
The eight justices agreed that the board was right: It didn’t have to consider the effects of second-order oil drilling when it approved the railroad. (The railroad remains on hold for other reasons, Sambhav Sankar, a senior vice president at Earthjustice, told me.) But by going further in his ruling, Kavanaugh entered into a running debate about the role of NEPA and other permitting laws in the American economy.
NEPA was never meant to play the commanding role that it does today, Kavanaugh writes. When it was first signed into law in 1970, NEPA was meant to act as a “purely procedural” check on federal decision-making. Agencies were supposed to conduct environmental studies, make their decisions, then move on. But in a famous 1971 ruling concerning a proposed nuclear power plant in Maryland, Judge Skelly Wright of the D.C. Circuit Court of Appeals transformed the law. He found that agencies had to carry out NEPA’s procedural requirements “to the fullest extent possible,” and crucially that courts could reject agencies’ analysis for lack of completeness.
Over the years, as hundreds of cases following Wright’s have added up, NEPA has turned into a “fearsome project killer,” Bagley said. Agencies spend decades of person-power and hundreds of thousands of dollars to prepare fastidious environmental reviews of their decisions. Any new infrastructure project or new policy change — even New York City’s congestion charge — requires some form of NEPA study.
Many conservatives have long opposed the modern NEPA process. But in recent years, some liberals have joined them, arguing that the law primarily slows down clean energy infrastructure and encourages NIMBYism. In practice, they say, NEPA acts as more of hindrance to the clean economy than the old fossil fuel economy: Because of a 2005 law, most oil and gas drilling has been exempt from the NEPA process, while wind farms, solar plants, and other forms of zero-carbon energy infrastructure still have to face it. Environmental groups rebut that the law is a useful tool to slow down fossil fuel pipelines, which do not generally get a NEPA exemption.
Data supports the idea that NEPA holds back clean energy projects, but that is partly because it holds back so many kinds of projects. The R Street Institute, a center-right think tank, has found that 42% of projects stalled by NEPA involved green infrastructure or conservation. Another analysis from the Center for Growth and Opportunity at Utah State University found that it takes more than two years on average for federal agencies to complete environmental reviews of solar and wind projects. Reviews for new hydroelectric or nuclear power plants take even longer.
Kavanaugh, in essence, rejects all of this. NEPA was never supposed to block or hinder large-scale energy or infrastructure projects, he writes; it was meant to “inform agency decision-making, not to paralyze it.”
“A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process,” he says. When federal agencies write environmental studies under NEPA, courts should broadly defer to the decisions that they make. And even if an agency gets something wrong in its study or omits something important, that does not mean the entire study — and the decision that it justifies — should be thrown out. (There’s some irony to Kavanaugh’s call for deference to agencies here, given that the Supreme Court rejected the idea that agency regulations deserve deference last year.)
“What’s notable for me is that they didn’t just rule on the case,” Sankar, the Earthjustice lawyer told me. (Earthjustice participated in the case.) “They decided to take a broad swipe at NEPA itself, really unnecessarily.”
Alexander Mechanick, a senior policy analyst at the Niskanen Center and former White House regulatory official, agreed with Sankar about the scope of the ruling. The court’s decision “does communicate over and over again, with a heavy hand, a real desire to get lower courts out of the business of fly specking the environmental impact assessments,” he told me.
It’s this forthrightness that seems to announce a new era of NEPA jurisprudence — one where the courts will accept a level of environmental review that they may have once rejected. In a way, Kavanaugh’s ruling is a fitting sequel to Wright’s 1971 decision in that both set the tone and capture the overarching environmental concerns of their respective eras, Bagley said.
Half a century ago, Judge Wright wanted to make sure that the American public could slow the wave of infrastructure that threatened to overwhelm the country’s landscape. NEPA represented “the commitment of the government to control, at long last, the destructive engine of material ‘progress,’” he wrote, asserting that judges must make sure the law’s goals are not “lost or misdirected in the vast hallways of the federal bureaucracy.”
Now, Kavanaugh seems to fear that progress itself has been held up. He writes that the modern NEPA process, with its cycles of “speculation and consultation and estimation and litigation,” has slowed down infrastructure projects and driven up their cost. He can sound more like an op-ed writer than a legal scholar as he lays out the law’s consequences in the ruling:
Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.
In this declaration, Kavanaugh seems to put himself on the side of a growing and tenuously bipartisan movement to reform NEPA. A 2023 debt ceiling bill, signed by President Biden, included modest reforms to the NEPA process, imposing page limits and deadlines on the strictest forms of environmental studies. A more sweeping bipartisan effort to change the law failed last year. Now, House Republicans are taking their own crack at revising NEPA, creating an optional and more expensive permitting “fast track” for developers in the reconciliation bill.
Sankar, whose organization has championed NEPA, argues that the ruling’s practical upshot will be to allow the Trump administration greater leeway to build fossil fuel infrastructure. Kavanaugh’s ruling exhibits “a shocking disregard for the realpolitik of what's going on with this administration in particular,” he said.
“As we’ve been saying all along, NEPA gets demonized as the problem,” Sankar said. With the law’s role reduced, “I think people will see that there are a lot of other things that are the problem here, and taking federal agency expertise out of the equation is not going to hurry things up.” He added that state and local governments often rely on federal NEPA reports for their own analyses, and now those reviews may be less trustworthy.
Bagley, who has generally supported permitting reform efforts, agreed that NEPA is just one of several laws holding back clean energy projects nationwide. But it is an important one, he said, and reducing its scope will likely allow more projects to happen. He added that by changing it, advocates will learn of additional bottlenecks that are holding back construction — including laws that nobody has noticed yet because they were previously less important than NEPA. Advocates can also now focus their attention on state and local barriers to building.
“If you want to look at the permitting burdens across the United States, probably 80% to 90% of them are state and local. This [ruling] isn’t going to inaugurate a new era of American dynamism,” Bagley said. “It’s a small step in the right direction.”